Advice to Graham Wrigglesworth
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- From
- Graham Wrigglesworth
- Date advice given
- 6 September 2010
- Enquiry type
I would be grateful if you could advise whether compulsory access to private land in connection with an NSIP would need to be obtained from the IPC pursuant to section 53 of the Planning Act 2008 or, alternatively, whether existing statutory rights available to the promoter under other legislation, such as the Railways Act or Water Industry Act etc. would be available as an alternative. In the case in question, the promoter has acknowledged that the project is an NSIP and is to be the subject of an application to the IPC.
It seems to me that for NSIPs within the scope of the 2008 Act provisions, the access arrangements are governed by section 53 and promoters are not permitted to default to more general access rights under existing legislation. For that to be the position, there would presumably need to be an express protection of existing access rights, which there isn't. The access rights under section 53 are subject to meeting certain criteria, including compliance with the section 42 consultation requirements. If the draftsman of the legislation had intended that these could be avoided by using other access rights, I would have thought that this would have been made explicit.
Could you assist with a view on this from the IPC?
Advice given
Section 53 is an enabling power and it is for the applicant to decide whether to request the IPC to issue an authorisation or to use other means to obtain access to land for example using existing statutory rights available to the promoter under other legislation if this is possible. Applicants will however need legal advice to determine whether any preconditions in that legislation can be met given that entry is required in connection with consent being sought under a different legislative regime and what consequential amendments if any the Planning Act has made to such legislation. The IPC cannot give advice about these procedures.
As you mention in the case in question, acknowledgement that the project is an NSIP and is to be the subject of an application to the IPC. Subject to meeting the requirements and pre conditions of Section 53 it is open therefore for the applicant to make a request for authorisation for entry.